OBSERVATIONS. QUESTION. (Hansard, 10 March 1871)

§ EARL STANHOPE

rose to call the attention of the House to the recent acquittal of Martha Torpey; and to inquire, Whether the noble and learned Lord on the Woolsack has in contemplation any measure to remedy the present state of the law? The noble Earl said that the facts were so recent, and must be so familiar to their Lordships, that he need only very briefly recapitulate them. In the month of December last Martha Torpey and her husband were residing at Leamington, where they appear to have planned a robbery of a most audacious character. They came to London and, by means of a forged letter of recommendation, hired a furnished house at the West End, under the assumed name of Tyrrell. Under this name Torpey presented himself at the shop of Messrs. London and Ryder, the well-known jewellers of Bond Street. He represented himself as desirous of purchasing some diamond ornaments for his wife, and was shown some cases of great value. Having selected some of these, he requested that they should be sent to him for the inspection of his wife at the house in Upper Berkeley Street, which he had hired under a false name. The assistant of Messrs. London and Ryder accordingly called there at the time appointed with cases of diamonds of the value of nearly £4,000. The street door was opened to him by Torpey himself, for which Torpey apologized, and led him upstairs into the drawing-room; in 1754 which was Mrs. Torpey. The assistant having displayed various diamond ornaments, Torpey selected some to the value of about £2,000. The value of the jewelry displayed, was about £2,600; but there were other ornaments of great value in the shopman's bag, which he had placed under the table. After some conversation Torpey turned to his wife and said that before concluding the purchase she had better consult her sister. She left the room on this pretence; and returned in a few minutes saying that her sister would be there directly, and then, stepping quickly behind the shopman, placed a a handkerchief saturated, as it would seem, with chloroform or some other stupefying substance, to his face. Torpey then rushed upon him and a struggle ensued, during which the woman Torpey again placed the handkerchief over the man's face, and held it there for some time. He then became insensible, but on recovering consciousness found that the jewels had disappeared, as had Torpey and his wife also; but, fortunately, the bag from which he had taken the jewels, which contained more jewelry, was still lying under the table, where he had placed it. Torpey made his way to the Continent, where he disposed of some of the diamonds; while the wife returned to Leamington, where, suspicion having been excited, she was apprehended. On her trial it appeared that in three instances she had taken an independent part in the robbery. The forged letter of recommendation was proved to be in her handwriting; she had sent away the maid-servant from the house on a false message to an address which could not be found, so that this domestic might be absent at the time; and she had left the room in which her husband was, had prepared the handkerchief with the anæsthetic out of his presence, and had returned to apply it herself to the shopman's face. Moreover, some days after the robbery, she sent part of the jewelry to a cousin at Southampton, requesting that care should be taken of it. She was defended not as denying the identity or questioning the robbery, but on the presumption that she had acted under the control of her husband, and therefore was not held guilty in the eye of the law; and her counsel, Mr. Montagu Williams, made such a speech as might be expected from a gentleman of 1755 his well-known ability and eloquence. She was acquitted and doubtless by this time had rejoined her husband on the Continent, where they were probably living in luxury—comparative luxury—on their ill-gotten gain. Now, it seemed to him that this case reflected great discredit on the administration of justice and the state of the law in this country. In the first place, the proceedings had been prematurely divulged by the Press, the blame of which, cast upon the magistrates by the police, was cast back upon the police by the magistrates. Thus it happened that newspapers containing the particulars reached Torpey at Amsterdam one morning, at the very time the police were prepared to arrest him. He had just time, therefore, to make his escape. Now, fortunately for us, it had very often happened that bad cases had made good laws; and whenever there had been any flagrant and glaring instance of the violation of justice under the old system, and whenever, on examination, it appeared that nothing could be urged in defence of that system, in this country of free inquiry its fate was doomed and its fall was near. He trusted that this would be the result in this instance, and that Martha Torpey would be entitled to some sort of public gratitude if the case led to a reformation of the law where it was much needed. The presumption of law on which she was acquitted was thus laid down by the learned Recorder, as reported in The Times of the 2nd instant— The jury must try the prisoner in the same way as if her husband was by her side. The presumption of law was that when an act was committed by a wife in the presence of her husband it was done under his control; but this presumption was capable of being rebutted by a consideration of acts committed by the wife independently of the husband, and of the character of which the jury were to judge. The Recorder, of course, had no need to travel beyond this particular case, or he might have informed the jury that the presumption of law did not extend to cases of treason or murder. Of this their Lordships would remember a striking instance in the case of Mrs. Manning, who committed murder in the presence of her husband, but was, nevertheless, justly condemned, and in due course executed. Now, surely if the principle was a sound one, it ought to be applied to all offences, small and great; but the truth was that it was found so 1756 repugnant to all ideas of equity and justice that a wife should escape punishment for murder, if committed in the presence of the husband, that the presumption of law was excluded and left only to cases of a less extreme degree of guilt. If a woman committed an offence under the control of her husband, the fact could be proved in evidence, without any presumption of law, in the same way that a child or an agent might escape responsibility. A flagrant miscarriage of justice had certainly occurred, and he should much regret it if any attempt were made to defend a defective law by alleging the incompetency of the jury, for the jury were bound to look to the general presumption of law as laid down by the learned Recorder. There had been similar instances of legal absurdities, which, on the occurrence of flagrant cases, had been set aside. For a long time the mummery of fines and recoveries existed, by which, when a man desired to settle his estate, he had first, by a legal fiction, to see it forfeited to the Crown, and by a second legal fiction to see it re-granted, both processes involving considerable expense. So, again, for a long period the prosecutions and exactions in the Ecclesiastical Courts were kept up, under the plea that they were all for the good of the offender—pro salute animœ, for his soul's health. When, however, the absurdity of these proceedings became manifest by flagrant cases the wisdom of Parliament interposed to abolish them. The noble and learned Lord on the Woolsack, who was not only the head of the law, but—if he might presume to say so in his presence—one of its most distinguished ornaments, could not be indifferent to this great defect, and he hoped to hear from him that it was his intention to apply a remedy.

THE LORD CHANCELLOR

Your Lordships cannot but feel greatly indebted to the noble Earl who has put the Question, and has taken such an interest in the due administration of the law. I agree with him that when cases occur showing great practical grievances arising under the existing state of the law, it is well that attention should be called to them, and inquiry made as to whether or not a remedy should be applied. It is, however, entirely owing to the imperfect statement that has appeared of this particular case that the defect of the law of which the noble Earl complains is supposed to have occasioned the miscarriage of justice which has certainly occurred. I think that when your Lordships hear the whole case, as to which I thought it my duty, on the Notice given by the noble Earl, to inform myself, you will find that it points not to any defect in the law, but to a defect in the conduct of this particular jury; for there can be no doubt that it was simply and solely a gross miscarriage of justice on the part of the jury which led to the prisoner's acquittal. It is quite true that the law presumes, in the first instance, that when a wife commits a crime in the presence of the husband she is to be taken as acting under his coercion and control. It is equally certain that exceptions have been made to that presumption of law which tend, as the noble Earl has justly said, to impugn the expediency of the law itself. The law, I believe, has come down to us from Saxon times, and has existed 1,000 years. Exceptions have been made in the case of manslaughter and murder; and there is also an exception, or, rather, an explanation—namely, that it being but a presumption, and presumption being a matter for the jury to take into consideration on the evidence, it maybe rebutted by evidence. The jury, therefore, in cases of theft, fraud, and robbery, are to presume coercion until the contrary is shown. The contrary may be shown by proving—as was clearly proved in this case—that the wife has acted apart from her husband, and has taken part in the crime in his absence and free from his control. It was distinctly proved that Mrs. Torpey had written the fraudulent letter in the absence of her husband, and without the possibility of his control, and that she had sent away the maidservant lest she should be witness of the robbery, also in the ab- 1758 sence of her husband. Another fact ought to have appeared at the trial, to which the Question of my noble and learned Friend (Lord Cairns) refers, and which I will notice presently. Now, if the case had been barely put before the jury, as given in the reports of the summing-up, the learned Judge would, no doubt, have been greatly in fault, for the report states that he simply informed the jury of the presumption, and told them they might exercise a judgment upon it as a matter of fact and nothing more. I was convinced from my long acquaintance with the learned Recorder that it was quite impossible he could have left the case to the jury in that manner. He is a Judge of very great experience, of calm and sound judgment, and a thorough master of the law which he administers. I thought it necessary to communicate with him, and ask what his summing up was, and I hold his reply in my hand. He told the jury distinctly what the law was—that though it was a presumption of law that the wife had acted under her husband's control, it might be rebutted by any evidence of her separate and independent action in the matter; and he called their attention pointedly to the two circumstances I have mentioned—namely, that Mrs. Torpey wrote the letter in her husband's absence, when there could be no such presumption; and that she sent away the maidservant in her husband's absence, whence there was also an absence of presumption. The learned Recorder put the case, indeed, in a way which made it impossible for the jury, if they exercised the fair judgment which ought to be exercised, to acquit the prisoner. Unfortunately, a circumstance was kept back which might have strengthened the case. The woman voluntarily stated before the magistrate that it was useless to inquire for her husband, that she had planned the whole, that her husband had done nothing in the matter, and that she was the author and contriver of it, as, indeed, the evidence tended to show. That evidence was on the depositions; but no witness was called with reference to it on the part of the prosecution. This so much surprised the learned Recorder that after the trial—of course it was not proper for him to communicate with him before — he asked the counsel for the prosecution how it was that a fact of 1759 such importance had been kept back. The answer he received entirely exonerated the counsel, who had no instructions upon the subject; the fact not having been communicated to him, and he being unable to know more than he had been instructed. The case shows a very great failure of justice, in consequence of the jury neglecting to observe the clear and precise ruling of the Judge with reference to the rule of the law and the evidence which pointed to it. There was one unfortunate circumstance which I am afraid we cannot prevent—the appearance of the prisoner in the dock with an infant in her arms. That was a very effective feature in the case. It was a singular coincidence that a Question had been asked in "another place" that very evening, as to a report in the newspapers of a case in which three women were charged before the magistrates with stealing faggot-wood, value 4d. The evidence having shown their guilt, the prosecutor said he would not press for a severe penalty against two of the women; but, as the third had used very abusive language to one of his witnesses, he pressed the case against her; she had a baby at her breast, but was sentenced to seven days' imprisonment. The woman cried and sobbed in a piteous manner, begging for the sake of the baby in her arms and of her little children at home that she might not be sent to prison. The magistrates, however, were inexorable, and it required the united efforts of three policemen to drag the prisoner to the cells below. Inquiry was then made, and it was found that the child in her arms had been out at nurse, and was brought into Court for that particular occasion for the purpose of exciting commiseration. The magistrates, fortunately, were not so sympathizing in that case as Mrs. Torpey's jury; like men of sense, they saw through the trick. In this case the ruling of the learned Judge was plain and distinct, and the law, whatever its merits or demerits, was not the cause of the woman's escape from condign punishment. It had been asked in some quarters what evidence there was that the prisoner was Torpey's wife; but the indictment charged her as his wife, and after that no evidence could be given or inquiry made on that point—it had to be dealt with as charged. As regards the law itself, I have been in conversa- 1760 tion with learned Friends, and a communication has been made to me by a noble and learned Lord (Lord Colonsay), who takes a great part in the appellate jurisdiction of this House, and is well versed in the law of Scotland, which he thinks is, in this respect, better than the English law. In Scotland a woman may be acquitted on the ground of her husband's coercion, but there is no presumption one way or the other. Now, I do not think there was any ground for the presumption in this case; but it may tend to mislead a jury to tell them that such is the presumption of law, instead of leaving it to them to say whether the woman was a free agent or was acting under coercion. I do not go quite as far as the noble Earl (Earl Stanhope) with reference to the question of coercion. I do not think it would be tolerated in this country that a woman should be convicted when the crime was clearly shown to have been committed under the husband's coercion. There is a remarkable case in Scotland, on which a woman was acquitted on this ground—I mean the case of Burke and Hare, who murdered persons and disposed of their bodies. Burke's wife was acquitted, for, though she was necessarily cognizant of what went on, the jury felt, that placed in a house with Burke and Hare, one of them her husband, it was right that she should be supposed to have acted under coercion. I think that state of the law in Scotland is preferable to the English law; but, after all, this involves a large department of the law as to husband and wife—how far she should be allowed to act as a free agent in the disposal of her property, and other questions—and it would not be right on the spur of the moment, and on a single case, to hurry into an alteration of the law. It is quite right that the matter should be considered; but I cannot at present give any pledge on the subject.